Pacific National Pty Ltd v Australian Rail, Tram and Bus Industry Union

[2010] FWA 2884

[2010] FWA 2884

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Pacific National Pty Ltd
v
Australian Rail, Tram and Bus Industry Union
(C2010/3331)

Rail industry
COMMISSIONER LARKIN	SYDNEY, 14 APRIL 2010

Application for orders to stop industrial action – drivers at Melbourne depot, Intermodal Division of Pacific National Pty Ltd – whether driver absence and lack of relief coverage is industrial action as defined – unprotected industrial action – order made.

[1] On 31 March 2010 Pacific National Pty Ltd (Intermodal Division) (Pacific National) made application to Fair Work Australia for an order pursuant to s.418 of the Fair Work Act 2009 (the Act) against the Australian Rail, Tram and Bus Industry Union (RTBU) and employees in the Pacific National Pty Ltd (Intermodal Division), Melbourne drivers’ depot.

[2] The application was listed in Sydney for mention at 9am on 6 April 2010. Mr Byrnes by permission appeared on behalf of Pacific National and Ms Presdee with Mr Barden appeared on behalf of the RTBU. The matter was listed for hearing on 15 April 2010. On 7 April 2010 Pacific National sought an earlier hearing due to what it stated was an escalation in the apparent industrial action. The matter was listed for hearing on Monday 12 April 2010.

[3] On Friday 9 April 2010 Pacific National filed the witness statements of Mr Tamplin, 1 General Manager Operations of the Intermodal Division, Mr Brown,2 Service Delivery Manager, East West Corridor of the Intermodal Division, Mr McEwin,3 Service Delivery Assistant, East West Corridor of the Intermodal Division, and Mr Mann,4 Regional Operations Manager, Melbourne, Intermodal Division. On Monday 12 April 2010 the RTBU filed the witness statement of Mr Hayden,5 National Organiser of the RTBU. Mr Head, locomotive driver in the Intermodal Division and RTBU delegate, gave evidence via video link from Melbourne. Mr Head also holds the position of State Branch President of the RTBU Victorian Branch.

[4] During proceedings on 12 April 2010 the above witnesses gave oral evidence and were cross examined on that evidence. At the conclusion of that evidence and after hearing the submissions of Mr Byrnes on behalf of Pacific National and Ms Presdee on behalf of the RTBU, I decided to make the order sought by the applicant, as amended during proceedings. My reasons follow.

BACKGROUND

[5] Pacific National is primarily a distributor of freight by rail. Pacific National is currently involved in negotiations with the RTBU in relation to an enterprise agreement.

[6] In its application, Pacific National stated that in March 2010 it received information, on an informal or inadvertent basis, that as a response to recent wage negotiations, sick leave by employees would increase in the short term commencing on trains scheduled to depart on the evening of 26 March 2010.

THE CASE AND THE EVIDENCE

[7] Mr Tamplin is the General Manager Operations of Pacific National Intermodal, responsible for interstate train operations, crew depots and rail terminals. He stated that Intermodal handles both containerised products and steel.

[8] Mr Tamplin stated that on approximately 26 March 2010 he received a telephone call from Mr Mann who advised him that the word on the grapevine was that “guys” 6would be booking off sick starting that night and that he was putting a contingency plan in place.

[9] He stated that on the morning of 29 March 2010 he read the Daily Departure Report which indicated that the 7MP7 service had been delayed by approximately 130 minutes due to crewing issues and he therefore telephoned Mr Mann in relation to the delay. In relation to this service, Mr Tamplin stated:

“The 7MP7 service is one of our key express services for our customers. Due to its shorter transit time, customers pay a premium for the service for the purposes of carrying time-sensitive products.” 7

[10] He stated that later on 29 March 2010 he telephoned Mr Mann who advised him that the 2MA5 and the 9552 services would not run that night because they could not get anyone to come in. He had another conversation with Mr Mann on 30 March 2010 and was advised that two further services were in doubt due to “some blokes book off and no-one wants to come in to cover”. 8Mr Tamplin had further conversations with Mr Mann on the issue on 30 March 2010. Mr Tamplin stated:

“On the morning of 31 March 2010, I received an e-mail from Michael O’Neill (Service Delivery Manager North-South) advising that services MB4 and 4BM4 had been cancelled due to driver shortage and inability to get drivers to come in to undertake a relief shift.

There were no service disruptions that I was aware of from 1 April 2010 through to 5 April 2010.” 9

[11] Mr Tamplin, in his statement, outlined conversations he had with Pacific National managers in relation to advice to customers and operational issues due to train cancellations and the impact of those cancellations.

[12] In his statement, Mr Tamplin outlined his conversations with Mr Mann and other Pacific National managers on 6 and 7 April 2010 in relation to further disruptions to services, the impact of train cancellations upon customers of Pacific National and the possible consequence on the Pacific National business. Mr Tamplin stated:

“When products are put on road instead of on rail due to rail disruptions, Pacific National loses the revenue of carrying that freight for its customers. Particularly for those customers who have time critical freight, the uncertainty of train operations for the Company will cause some customers to reconsider rail as an option and go to road.

I am also aware that we are currently in contract negotiations with 2 of our top 10 customers with a combined revenue of $230 million per annum, as well as trying to get back freight from an existing contracted customer who previously took freight away from Pacific National. My concern is that ongoing disruptions may negatively impact on those contract discussions due to the Company earning a reputation as being unreliable.” 10

[13] In his statement Mr Brown, Service Delivery Manager, East West Corridor of Pacific National Pty Ltd, Intermodal Division, stated that “whenever a driver contacts the Service Delivery Centre to report in his/her absence from duty, whether it be because of sickness, other required leave or vacancies within the posted roster, the Service Delivery assistance (sic) completes a Driver Replacement Form to initiate filling the vacancy created by the relevant absence of the driver”. 11Attached to Mr Brown’s statement, at Annexure B, was a document for the period 1 February 2010 to 9 April 2010 compiled by Mr Brown from information on an excel spreadsheet. That document set out the number of absences, replacement attempts and trains cancelled for a specified date.

[14] Annexure B contained the following information:

Date	Number of Absences	Replacement Attempts	Trains Cancelled
9-Apr	1	1	0
8-Apr	3	37	3
7-Apr	3	36	3
6-Apr	1	15	1
5-Apr	0	0	0
4-Apr	0	0	0
3-Apr	0	0	0
2-Apr	1	5	0
1-Apr	2	27	1
31-Mar	4	24	4
30-Mar	2	15	3
29-Mar	3	19	4
28-Mar	6	67	1
27-Mar	2	24	0
26-Mar	5	36	0
25-Mar	4	28	0
24-Mar	1	4	0
23-Mar	0	0	0
22-Mar	0	0	0
21-Mar	0	0	0
20-Mar	0	0	0
19-Mar	0	0	0
18-Mar	0	0	0
17-Mar	0	0	0
16-Mar	1	5	0
15-Mar	3	14	0
14-Mar	2	19	0
13-Mar	0	0	0
12-Mar	0	0	0
11-Mar	1	1	0
10-Mar	2	8	0
9-Mar	2	7	0
8-Mar	0	0	0
7-Mar	0	0	0
6-Mar	0	0	0
5-Mar	0	0	0
4-Mar	0	0	0
3-Mar	3	16	0
2-Mar	2	10	0
1-Mar	0	0	0
28-Feb	0	0	0
27-Feb	1	7	0
26-Feb	0	0	0
25-Feb	0	0	0
24-Feb	0	0	0
23-Feb	1	5	0
22-Feb	1	8	0
21-Feb	2	20	1
20-Feb	1	10	0
19-Feb	2	11	0
18-Feb	1	9	0
17-Feb	1	10	0
16-Feb	2	15	1
15-Feb	1	14	0
14-Feb	1	7	0
13-Feb	0	0	0
12-Feb	4	41	0
11-Feb	4	11	0
10-Feb	0	0	0
9-Feb	2	10	0
8-Feb	1	2	0
7-Feb	0	0	0
6-Feb	0	0	0
5-Feb	0	0	0
4-Feb	0	0	0
3-Feb	0	0	0
2-Feb	0	0	0
1-Feb	3	13	0

[15] The above document, in summary, shows that:

• On 16 February 2010 1 train was cancelled – 2 absences reported and 15 replacement attempts.



• On 21 February 2010 1 train was cancelled – 2 absences reported and 20 replacement attempts.



• On 28 March 2010 1 train was cancelled – 6 absences reported and 67 replacement attempts.



• On 29 March 2010 4 trains were cancelled – 3 absences reported and 19 replacement attempts.



• On 30 March 2010 3 trains were cancelled – 2 absences reported and 15 replacement attempts.



• On 31 March 2010 4 trains were cancelled – 4 absences reported and 24 replacement attempts.



• On 1 April 2010 1 train was cancelled – 2 absences reported and 27 replacement attempts.



• On 6 April 2010 1 train was cancelled – 1 absence reported and 15 replacement attempts.



• On 7 April 2010 3 trains were cancelled – 3 absences reported and 36 replacement attempts.



• On 8 April 2010 3 trains were cancelled – 3 absences reported and 37 replacement attempts.

[16] In the period from 25 March 2010 to 27 March 2010 there were no train cancellations, however, there were 11 absences reported with 88 replacement attempts. The data relevant to other dates during this period reflect that there were absences and attempts made to replace the absent driver, however, there were no trains cancelled.

[17] Mr Brown also attached to his statement a document complied from an excel spreadsheet and the related graph reflecting the number of overtime shifts performed by drivers for the period 29 November 2009 to 10 April 2010. 12 The spreadsheet recorded the following information:

Week ending	Number of overtime shifts
5/12/09	33
12/12/09	46
19/12/09	35
26/12/09	27
2/01/10	12
9/01/10	33
16/01/10	42
23/01/10	28
30/01/10	22
6/02/10	37
13/02/10	40
20/02/10	33
27/02/10	35
6/03/10	39
13/03/10	36
20/03/10	39
27/03/10	45
03/04/10	14
10/04/10	2

[18] It appears from the above data that there were reduced overtime shifts worked for the week ending 3 April 2010. Mr Byrnes tendered a document, 13 which updated the number of overtime shifts worked to 10 April 2010 to 5 overtime shifts worked. This was a reduction in overtime shifts worked in this period. While I accept, as Ms Presdee put to Mr Brown in cross examination, that the period 31 March to 11 April 2010 was school holidays in Victoria, there was nonetheless a substantial drop in the overtime worked by drivers in this period compared to the previous numbers of overtime shifts worked.

[19] Mr McEwin is the Service Delivery Assistant, East West Corridor of Pacific National’s Intermodal Division. Mr McEwin’s position involves mitigating any crew-related impact to service delivery and includes finding replacement drivers to cover shifts. In his statement, Mr McEwin outlined the process of driver management in relief situations, which he stated was within the constraints of the enterprise agreement and Pacific National’s fatigue management guidelines. Mr McEwin stated:

“I will then contact these drivers by telephone or text message, until I find a driver who is willing to work the shift. In general, I will end up contacting 3 to 5 drivers before I find a driver who is willing to perform the shift. In my experience, the drivers have generally been quite flexible in working extra/non-rostered shifts. For example, the drivers might agree to change their start time by 6 hours (for which they received a penalty payment), or work to a barracks location (2 shifts) when they might have only been rostered for a local job.

At times, I am required to juggle multiple drivers and multiple shifts to ensure that a shift can be covered. For example, if a driver is already working, I might allocate him to the shift that needs to be covered, and then find another driver to cover his shift.

When a driver declines to work the shift, I do not ask them for their reasons. On occasion, it is difficult to find drivers to replace jobs and this can be for any number of reasons volunteered by the driver, such as the drivers attending weddings or significant birthdays. Also, some jobs are simply difficult to replace because it is an unpopular shift with the drivers. For example, a job that starts at 2220 and finishes at 0730 the next morning is a more difficult job to cover.” 14

[20] Mr McEwin stated that since 31 March 2010 it had been more difficult to replace jobs and that, at times, he had placed up to 20 to 25 calls before he could find a replacement driver to cover the shift. He stated that a “fair majority” 15of drivers had responded by saying words to the effect of not to call them for the next couple of days. He stated that some of those drivers may have given him a reason while others had not. He stated that, in his experience, it is unusual not to be able to cover shifts and that drivers “do not appear to be as flexible as they have been in the past”.16

[21] Mr Mann is the Regional Operations Manager, Melbourne, Pacific National Intermodal Division. Mr Mann’s position involves managing the train crew operations.

[22] Mr Mann stated that on approximately 23 March 2010 he became aware of a notice on the driver RTBU notice board in relation to an enterprise agreement update meeting to be held at the Melbourne Locomotive Provisioning Centre (LPC) at 1.00pm on 25 March 2010. He stated that the notice was signed by Mr Webb, RTBU Secretary or Mr Head, RTBU representative. He stated that he spoke to Mr Head and advised him that the LPC was not the appropriate location for the meeting and that he would organise another location.

[23] Mr Mann stated that at approximately 11.30am on 25 March 2010 he telephoned Mr Head in relation to another location for the meeting and was advised that the meeting had already been held. Mr Head finished the conversation as he advised Mr Mann that he had to go as he was running the 5MS4 freight train from Melbourne to Sydney. Mr Mann stated that he then checked the notice board and that the meeting time had been changed to 10.00am and the notice had been signed by Mr Head.

[24] Mr Head, in his evidence in chief, disputed Mr Mann’s evidence and stated that the meeting was to be held at 10.00am. Mr Head did not dispute Mr Mann’s statement in relation to the content of their conversation on 25 March 2010 but he stated that the conversation was in the context of the location of the meeting and not the timing of the meeting.

[25] In relation to the meeting Mr Head held with the drivers in the LPC he stated that approximately 20 to 25 drivers attended and they discussed whether they should move to the car park for their meeting or stay in the LPC. He stated that their “testosterone levels” were up and, therefore, it was decided to hold the meeting in the LPC. He stated that he discussed with the drivers the issues of driver shortage and the current wage offer. Mr Head stated that he reported back on the enterprise agreement discussions and that the next step would be to seek legal protected action. He stated that he explained the process of a ballot, which would be late April or early May and made it clear that members should vote. He stated that the mood generally was that they accepted the process and were happy for a vote. He stated that the drivers were unhappy because it had been nearly two years since a wage increase.

[26] Mr Head’s evidence of what was discussed in the above meeting is the only evidence before me. Having acknowledged that fact, there is every probability that the issue of the taking of some form of industrial action was raised and discussed when one considers what occurred after that meeting and Mr Mann’s evidence, which I accept, of the conversation he overheard as outlined below.

[27] In his statement Mr Mann outlined the following in relation to events on 26 March 2010:

“On or about the morning of Friday 26 March 2010, I was in the boardroom of Pacific National Intermodal Melbourne freight terminal obtaining some notes that we had left on the electronic whiteboard from a meeting that had occurred on Monday 22 March 2010. Whilst I was in the boardroom, I heard some employees talking in the corridors/milling area for the terminal operators.

I did not see the employees, nor did I recognise their voices. However, I did clearly hear them say words to the following effect:

E1: “We might have a late train cancellation tonight. There might be some issues with the drivers.”

E2: “Yeah, and they may have some trouble covering that, from what I hear.”

E3: “Yeah, I heard there might be a bit of Chinese flu going around next week as well.”

I understood the reference to the ‘Chinese Flu’ to mean that we may have some “sickies” the following week, which may or may not be genuine.

Having heard these comments, I then had a look at the train that would be most likely to be affected by people not coming to work. I noticed that the last train out on 26 March 2010 was the 7MP7 (departing in early hours of Saturday morning, leaving Melbourne, arriving in Perth, Express Service) which is the train that Pacific National gives the highest priority.” 17

[28] In his evidence in cross examination Mr Mann stated that he heard three voices, however, there were a number of persons there. He stated his “ears pricked up” when he heard that there would be trains cancelled. Mr Mann’s evidence on this point was not seriously challenged. The evidence, in my view, is compelling of a campaign to disrupt the Pacific National operations. After this incidence there appears to have been an increase in employees “booking off”and difficulties in the Intermodal Service Delivery Centre (ISDC) locating relief drivers to cover those shifts. On the night in question, being 26 March 2010, the “priority”7MP7 service “departed Melbourne 2 hours and 10 minutes late”. 18

[29] Mr Mann stated that after overhearing the conversation of employees, as outlined above, he telephoned Mr Head and asked if there was any industrial action. He stated that Mr Head advised him that he was not aware of any issue and that the RTBU was not involved in any industrial action.

[30] In his evidence in cross examination, Mr Head stated that Pacific National was experiencing a shortage of qualified drivers. Mr Head was adamant that he had not heard from anyone that there were bans in place. He stated that there were no overtime bans currently in place and that people were still working overtime. Mr Head’s evidence was that there was no unprotected industrial action taking place.

[31] In his statement Mr Mann outlined the events during 26 March 2010 and conversations he had with Mr Tamplin and the ISDC in relation to driver absences and relief coverage. Mr Mann referred to two emails from the ISDC, attached to his statement at annexures A and B, in relation to 26 March 2010, as follows:

“Those emails confirmed that on 26 March 2010:

(a) Trainee driver Steve Ellis booked off sick prior to email time of 19:54 for the 7MP7, but the ISDC was able to get another driver to replace S Ellis, at approx 22:00; and

(b) driver Dave Doriean booked off sick prior to email time of 22:35, for the 23:20 start for 7MP7 and the ISDC was unable to replace the driver. Driver trainer Bob Leis covered the sickness from 01:30.” 19

[32] Mr Mann stated that on 27 March 2010 he spoke with Mr Head on a number of issues including the ongoing agreement negotiations. Mr Mann stated that he relayed to Mr Head the issue with the book offs on 7MP7 the previous night. Mr Mann’s evidence was that “[Mr Head smiled and put his hands out] “As I said yesterday, the union has no involvement. But you’ve got to understand that the drivers are not happy with the EA process or the current wage offer.”” 20 In his evidence in cross examination Mr Mann stated that to the best of his knowledge that was how he remembered the conversation with Mr Head.

[33] Mr Head, in evidence in chief, acknowledged the words that Mr Mann attributed to him in the above quote. He, however, disputed that his words followed Mr Mann’s comments as stated by Mr Mann. Mr Head did not dispute the words used by him to Mr Mann.

[34] Mr Mann’s statement, from points 20 to 39, outlined the events in relation to driver absences, relief coverage and train cancellations from 28 March 2010 to 8 April 2010. Mr Mann stated:

“In my experience, I have not encountered this level of difficulty in finding drivers to come in and cover trains and this number of train cancellations.” 21

[35] I have had careful regard to the evidence given by Mr Mann and Mr Head in the proceedings before me. In the circumstances of this case, I am more persuaded by the evidence given by Mr Mann. Where that evidence differs to that given by Mr Head I am more inclined to accept Mr Mann’s evidence.

[36] In his statement 22 Mr Hayden, National Organiser for the RTBU, outlined his involvement in the negations with Pacific National in relation to a number of agreements covering Pacific National employees in the Business Divisions of Bulk Products, Coal and Intermodal. He stated that the negotiations for the proposed agreements commenced in approximately January 2009 and intensified in approximately May 2009. Mr Hayden outlined his process of communication with RTBU delegates in Pacific National terminals and offices. Mr Hayden stated that on 23 March 2010 he arranged a phone hook up to brief delegates on the status of negotiations and processes “to be followed should it be necessary to proceed to a Protected Action Ballot”.23He stated that he reaffirmed, as he had done on a regular basis, that the RTBU did not and would not endorse or support any action other than protected industrial action and that they must remain disciplined irrespective of any frustration.

[37] Mr Hayden stated that he first became aware of any alleged industrial action taking place when he received the notice of listing from Fair Work Australia on 1 April 2010. He stated that he contacted Mr Head “to see if he was aware of the nature of the alleged industrial action. He was not aware of any action, of any kind”. 24In his evidence in cross examination, Mr Hayden stated that he confirmed with Mr Head that the RTBU did not and would not support unprotected industrial action and that he accepted Mr Head’s assurances of no industrial action. Mr Head in his evidence in cross examination stated that he had reaffirmed with drivers the RTBU’s view of not taking unprotected industrial action.

[38] Mr Hayden stated that as the RTBU had been granted an order for a protected action ballot earlier that week he forwarded a Newsflash to delegates for distribution. A copy of the Newsflash was attached to Mr Hayden’s statement at RH1. Mr Hayden stated that the Newsflash clearly stated:

“As the ballot process will take a number of weeks to complete, it is business as normal until then, including meeting with the Company, as it is our preferred option to reach a negotiated outcome without having to resort to industrial action.” 25

[39] Mr Hayden stated that he continued to telephone delegates for more information and he also had regular contact with managers of Pacific National in relation to the agreement negotiations and any industrial issues. He stated that “[e]arly in the week commencing 29 March 2010, I missed two calls from Matthew Tamplin, General Manager Line Operations, on my mobile telephone. No messages had been left”. 26He stated that in emails exchanged between him and Mr Tamplin and in conversations with Mr Tamplin any alleged industrial action had not been mentioned. He stated that he did not received any details from Pacific National about the nature of the alleged industrial action until the morning of 6 April 2010 (this was the date of the mention of the Pacific National application before me). Mr Hayden stated that the application and the order sought had not been served on the National Secretary prior to the directions hearing.

[40] Mr Hayden stated that on 6 – 7 April 2010 he, Ms Presdee and Mr Barden drafted and, forwarded to delegates for distribution, another Newsflash outlining the difference between protected and unprotected industrial action. Mr Hayden stated that:

“On 7 April 2010, together with Mr Barden and with other RTBU representatives Mr Alex Claassens, Mr John Curley, Mr Bob Newnham and Mr Brain Head, I met with representatives of Pacific National at our office in Redfern to continue discussions on the enterprise agreements. While he was there, I asked Mr Head once again if he knew of any plan or arrangements regarding drivers taking sick leave or refusing relief work. Mr Head assured me that he did not.” 27

[41] Mr Hayden continued in his statement with reference to discussions he had with Mr Tamplin in relation to alleged industrial action in Adelaide and what the situation was in Melbourne. Mr Hayden stated that delegates had assured him that there was no campaign or action in either State. Mr Hayden concluded:

“I have read the statements provided by Mr Tamplin, Mr Mann, Mr etc. (sic) At no stage was I aware of any plans regarding the availability of PN drivers in Melbourne to present for work, including relief work. At all times I have urged Delegates, and through them, RTBU members, to act with restraint and only to take action if and when it has been authorised by a protected action ballot and is in accordance with the requirements of the Fair Work Act 2009. The most recent notice was sent on 9 April 2010 and is annexed at RH4.” 28

[42] In cross examination Mr Hayden maintained the RTBU’s position as he outlined in his statement. Mr Hayden stated that he had confirmed with Mr Head that the RTBU would not support unprotected industrial action and that he accepted Mr Head’s assurances on this point.

[43] I accept Mr Hayden’s evidence.

CONCLUSION

[44] Section 418 of the Act states:

“418 FWA must order that industrial action by employees or employers stop etc.

(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) FWA may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, FWA does not have to specify the particular industrial action.

(4) If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[45] Pacific National has made an application under ss.418 (2) of the Act as a person who is affected or likely to be affected, whether directly or indirectly by what it says is unprotected industrial action by drivers of the Intermodal Division of Pacific National, Melbourne depot.

[46] Industrial action is defined at s.19 of the Act as follows:

“19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

[47] Mr Byrnes submitted that the action by employees was the kind of action within the meaning of paragraphs (b) and (c) of ss.19 of the Act. He submitted that there was an increased number of drivers taking sick leave and that while ordinarily drivers cooperated in replacing those drivers this changed on or about 26 March 2010. Mr Byrnes submitted that it is within the driver’s prerogative to refuse a replacement shift, however, previously those shifts were routinely accepted. He submitted that the situation is now that those shifts are knocked back.

[48] The provisions of the Pacific National Intermodal Train Crew Enterprise Agreement 2006 require employees to comply with any reasonable request to work shift rosters where required and to work reasonable overtime. There are provisions within the agreement where an employee may decline to work overtime if the working of those hours are unreasonable having regard to a number of factors to be considered.

[49] Mr Brynes relied upon the decision in Australian Workers Union and BlueScope Steel Limited. 29 This decision concerned an appeal by the Australian Workers Union against an order made by Senior Deputy President Cartwright pursuant to s.496 of the Workplace Relations Act 1996 (the WR Act). While the matter before the Full Bench was decided under provisions of the WR Act, Mr Byrnes relied upon paragraph [18] of the decision as a relevant consideration having regard to the circumstances of the matter before me. The Full Bench, at paragraph [18] stated the following:

“…At the very least, the action in this case was a coordinated and collective limitation on the acceptance of or offering for work by employees, namely voluntary overtime constituted by the 21st shift, and was therefore action of a kind coming within paragraph 420(1)(b). It had the effect that employees who would ordinarily volunteer for overtime did not do so (and, as such, undoubtedly had an industrial character). While the matter is not without some difficulty, we think the better view is that BlueScope could not be said to have authorised or agreed to that action. The action in this case was not merely a case of employees choosing to exercise their “right” to decline to work the 21st shift. Here, an essential feature of the action was that this occurred pursuant to an understanding between the employees and in a way that was coordinated and collective. While BlueScope could be said to have authorised individual employees not to volunteer for overtime it could not be said to have authorised or agreed to a coordinated and collective refusal of voluntary overtime constituted by the 21st shift.”

[50] In my view, the above extract from the Full Bench decision is relevant to the circumstances before me in this matter. The parties are entitled to certain rights and have certain obligations under their agreement. The employees are entitled to personal/carer’s leave of absence and in certain circumstances to decline to work overtime hours considered unreasonable. However, that is not the situation in this matter and I am of the opinion that “an essential feature of the action was that this occurred pursuant to an understanding between the employees and in a way that was coordinated and collective”. I am not persuaded that the lack of relief coverage of drivers who book off sick is simply a coincidence and possibly due to the Victorian school holidays period. It is, in my view, more than a simple coincidence that drivers, or at least some of them, reported an inability to perform duties on their allocated shifts over the particular periods outlined above and that the ISDC were unable to find a replacement driver after a number of attempts to do so. I accept the evidence of Mr McEwin that “drivers do not appear to be as flexible as they have been in the past”. 30I also accept Mr Mann’s evidence that in his experience “I have not encountered this level of difficulty in finding drivers to come in and cover trains and this number of train cancellations”.31On the evidence before me I am persuaded that the conduct complained of is of a coordinated and collective nature.

[51] Pacific National sought that the order binds the RTBU. I am not, and was not satisfied that on the evidence, the RTBU were in fact organising the industrial action in question. I accept the evidence of Mr Hayden on this point. As I have alluded to, Mr Head’s evidence is more problematic. However, as Mr Byrnes submitted, Pacific National had no direct evidence of the RTBU’s involvement in organising industrial action. Mr Byrnes did, however, seek that Fair Work Australia have regard to the “wilful blindness” on the part of Mr Head in his position as an RTBU delegate on site. Mr Head’s evidence, in some respects, was of concern, however, without any direct evidence I must decline to draw any inference as to the RTBU’s involvement in organising the industrial action. Furthermore, an order of this nature considering the consequence of a breach of the order should not, in my view, be made on the basis of an inference without material in support to enable Fair Work Australia to form the view that “it appears to FWA that industrial action by one or more employees…that is not, or would not be, protected industrial action…is being organised”. 32 For these reasons I declined to include the RTBU as a party bound by the order.

[52] As the Full Bench in Australian Workers Union and BlueScope said, while the matter (which is before me) is not without some difficulty, I am and was satisfied on 12 April 2010 that the conduct complained of falls within the statutory definition of industrial action. The conduct, in my view, can be characterised as being a limitation or restriction on the acceptance of or offering for work by an employee within the meaning of paragraph (b) of ss.19 of the Act and a failure by employees to attend for work pursuant to paragraph (c) of ss.19 of the Act. That industrial action is not protected action.

[53] I am and was satisfied that the industrial action was happening or impending or probable. For those reasons I made the order 33 that the industrial action stop and not occur for the period specified in the order.

COMMISSIONER

Appearances:

Mr M Byrnes, Clayton Utz, for Pacific National.

Ms K Presdee, with Mr A Barden, for the RTBU.

Hearing details:

Sydney and Melbourne by video link.

2010:

April, 12.

 1   Exhibit A1.

 2   Exhibit A3.

 3   Exhibit A5.

 4   Exhibit A6.

 5   Exhibit R1.

 6   Exhibit A1 at point 5.

 7   Ibid at point 9.

 8   Ibid at point 12.

 9   Ibid at points 19 and 20.

 10   Ibid at points 32 and 33.

 11   Exhibit A3 at point 4.

 12   Ibid at annexure F.

 13   Exhibit A4.

 14   Exhibit A5 at points 4 to 6.

 15   Ibid at point 7.

 16   Ibid at point 8.

 17   Exhibit A6 at points 8 to 11.

 18   Ibid at point 17.

 19   Ibid at point 18.

 20   Ibid at point 19.

 21   Ibid at point 40.

 22   Exhibit R1.

 23   Ibid at point 3.

 24   Ibid at point 7.

 25   Ibid at point 8.

 26   Ibid at point 10.

 27   Ibid at point 15.

 28   Ibid at point 20.

 29   [2008] AIRCFB 24.

 30   Exhibit A5 at point 8.

 31   Exhibit A6 at point 40.

 32   Subsection 418(1)(c) of the Act.

 33   PR995704.

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